July

Lawyers Journal

Probationers rarely take extraordinary steps to demonstrate that
they did not violate the terms of their probation when confronted
by a machine that suggests that they consumed alcohol. Such was the
case in the Commonwealth v. Anthony Galluccio probation
surrender case in January of 2010, currently under appeal to the
Appeals Court.1 In preparing this article, I reviewed
the probation surrender hearing transcript, the hearing exhibits,
technical specifications for the fuel cell in an alcohol
breath-testing device, over 20 scientific journals which documented
the science of EtG testing for ethanol use,2 and the
appellate brief filed by Charles Ogletree.3

On Friday, Dec. 18, 2009, former Massachusetts state Sen.
Anthony D. Galluccio was placed on probation in a matter that
involved leaving the scene of an accident. The court ordered him to
remain alcohol free, and submit to random testing for alcohol.

In the afternoon of Monday, Dec. 21, 2009, Galluccio was working
in his home office when Cambridge's chief probation officer arrived
at his home in order to install a device referred to as a
"Sobrietor." The Sobrietor is a machine that obtains, measures and
reports the alcohol content of a breath sample from the
probationer. The machine verifies the identity of the person
through a voice recognition system built into the
machine.4

At the surrender hearing, Michael Jacobs, the program manager
for the Boston Electronic Monitoring Center who installed the
Sobrietor, testified about his interactions with Galluccio - that
he did not observe any of the indicia of alcoholic beverages - no
odor of an alcoholic beverage, no slurred speech, glassy eyes or
any indication of impairment.

Jacobs testified at the probation surrender hearing that when
Galluccio first learned that the Sobrietor reported positive
results, that Galluccio asked for a blood test. Galluccio could not
have his blood tested without the permission of the Probation
Department, and his requests that day were not allowed.

The Sobrietor is not an evidentiary testing device.5
By regulation, results from a Sobrietor breath test are not
admissible in a criminal trial.6 When an approved
evidentiary machine is used to test breath for alcohol, such
measurements are acknowledged to be imprecise.7

Galluccio's first test registered a .037 on the Sobrietor. Three
minutes after the first reading, a second value of .033 was
obtained on the same Sobrietor. If these two readings were precise
and accurate, then Galluccio would have been eliminating ethanol
from his body at a rate of .004 in three minutes, or .08 per hour.
An elimination rate of .08 g/dL per hour would be unprecedented in
the science,8 and the rate is more likely attributed to
the error in the reported results themselves.

If Galluccio had been tested on an evidentiary machine, a second
reading at or between a .01 and a .059 would have been a "precise"
measurement by Massachusetts standards, and would have reported the
lower of the two measurements (either a .01, .02 or a
.03).9 The Sobrietor is not certified to this degree of
precision, but is configured by default so that results at or below
a .025 are considered to be below the level of detection for the
machine.10

The Sobrietor evidence was the sole evidence of a violation of
probation, the court found he violated the condition that required
he abstain from alcohol, and Galluccio was sentenced to a year in
the house of correction. His motion for a stay of sentence was
denied.

In criminal driving under the influence cases, a defendant has
the right to be "immediately" seen by a physician, for the purpose
of having an independent test.11 Such due process rights
exist because measurement of blood is the "gold standard"
scientific method for measuring the amount of ethanol in the blood
of a subject.12

The need to be tested immediately is important. In the
Commonwealth v. Colturi decision, the Supreme Judicial
Court defined a three-hour interval between driving and measuring
alcohol on the driver's breath to be a reasonable time to take a
measurement of ethanol.13

The Massachusetts legal press recently reported "SJC justice:
'Melendez-Diaz' doesn't apply to OUI case," discussing why a blood
test can be introduced at a DUI trial without a live witness after
the medical records are subpoenaed by the
commonwealth.14 While the Commonwealth v.
Parmenter decision might be seen to chill the exercise of an
independent test (after all, the government may know about the
test, and may even have transported the defendant to the hospital),
an independent test is likely to be distinguished from
Parmenter, in that the independent test was performed
explicitly for a court proceeding. Whether the commonwealth would
be entitled to the test results, or would know absent introduction
by the defendant that they were not favorable, has yet to be
determined.

Of perhaps greater concern is the illusory nature of the right
to an independent test. In probation matters, it is rare for the
probation officer to be present when a Sobrietor tests positive,
even rarer for the probationer to ask for an independent blood
test, and perhaps even rarer for the probation officer to remember
that request and testify that the probationer asked for an
independent test.15

The logistics of obtaining an independent test are often
insurmountable. Most physicians do not draw blood in their offices.
Most DUI arrests occur between midnight and 4 a.m., and at that
time of morning, the only physicians on duty are in an emergency
room at a hospital. Getting to see a physician by navigating
through the triage of an emergency room, being seen by a doctor,
making an appointment for a blood draw, and having blood drawn for
a blood test - all within the three hours mandated by
Colturi for relevance - is difficult during the daylight
hours, and is likely impossible in the early hours of the morning.
Fortunately, there are tests that can look back more than three
hours.

There is often confusion over what is prohibited when a
probationer is required to remain "alcohol free." The judiciary's
use of the term "alcohol" is often assumed to mean the chemical
compound "ethanol" or "ethyl alcohol." Ethanol is the form of
alcohol found in distilled spirits, beer and wine. There are more
than 1,500 chemical compounds in the alcohol family16
that have nothing to do with alcoholic beverages.

Since a probationer is prohibited from having "ethanol" in their
body, the first question is how ethanol might come to be present in
the body. The most obvious way is by drinking a beverage such as
beer, wine or spirits. But this is not the only way that ethanol
can enter the body through the mouth.

Other drinks are not ethanol free, despite the commonly held
belief that they are. For example, Diet Seven-Up17
contains ethanol in small portions. High-energy drinks, such as
Monster and 180 Energy, contain several times as much ethanol as
Diet Seven-Up. Some foods contain ethanol, such as breads, pizza,
English muffins, wheat bread and apple walnut roll (in increasing
concentrations).18 While you are not likely to become
impaired from the ethanol in these drinks and foods, you will not
remain alcohol free if you eat or drink them.

Ethanol is generated when sugars are fermented, and this can
occur in the human body when yeast and carbohydrates are present.
This has been inconsistently demonstrated at DUI seminars and
workshops, with some results above the legal limit (.08 g/100 ml)
on varieties of pizza, Wonder Bread or hot dog
rolls.19

Ethanol can be absorbed into the body in other ways as well.
Ethanol is medically administered as an antidote for some
poisons.20 A material safety datasheet for ethanol
describes the effects of inhalation of ethanol fumes, which can
result in coma or death in high concentrations, and will result in
absorption of ethanol into the body in lower
concentrations.21 Finally, small amounts of ethanol are
absorbed when hand sanitizers, such as Purell,22 are
applied to the skin.

Some manufacturers of machines designed to detect ethanol on the
breath have freely interchanged the term "alcohol" and "ethanol" in
their literature and training. The interchangeability of the two
terms has been introduced into the statutes in many states,
including Massachusetts.23 The historic intoxication
provision has always required impairment from "intoxicating liquor"
or an enumerated drug, yet the newer "per se" prohibition
is for "alcohol" in the body, not "ethanol."

In 2004, the National Highway Transportation Safety
Administration quietly announced its new mission with regard to
approving machines that are designed to measure ethanol in the
breath.24 In placing machines on the conforming products
list, which Massachusetts relies upon for approval, NHTSA no longer
requires measurement of "intoxicating liquor" or "ethanol."
Approved machines now measure and report any kind of alcohol.

There are two basic classes of machines that measure human
breath for alcohol. One class uses infrared light, and takes
advantage of the manner in which molecules behave with respect to
energy from that light. These machines are the only ones authorized
by the Office of Alcohol Testing.25

The second class of machines uses an electrochemical fuel cell
to measure alcohol. The Sobrietor used in the Galluccio surrender
is one of these devices. Fuel cells respond to different kinds of
"alcohol." While the judge and most lawyers laughed at the
proposition that toothpaste would register on the Sobrietor,
Sensodyne toothpaste (the kind shown by Galluccio to the probation
officer when the positive results were first detected) has Sorbitol
as a main ingredient.26 Sorbitol is an
alcohol,27 as are most chemicals that end in the sound
"-ol," such as menthol.

The Boston Herald confirmed that toothpaste does
register on a fuel cell breath test machine that it purchased, but
that the readings went away after several minutes.28
Jacobs gave no special instructions to Galluccio regarding any
interference that might elevate readings on the Sobrietor. If a
whitening toothpaste is partially retained in the mouth, to extend
the whitening affect, then a positive reading on the Sobrietor is
not such a silly possibility.

In the case of other probationers, the random request for a test
could arrive just as the probationer was brushing their teeth. If
the probationer supplies a prompt sample, the procedure would
result in a false positive test. If an unexplained positive result
were reported, it would not be unreasonable for a probationer to
try to clear their mouth of whatever was causing the reading, and
that could result in brushing one's teeth. Using mouthwash before a
sample is far worse.

Of greater concern in this case, and not raised at the hearing
or in the appeal, is the manner in which the Sobrietor came to be
set up in Galluccio's home. The issues of repair of the machine
were well developed in the appeal, and are of concern, as are the
issues that the machine is not an approved device in
Massachusetts.

Assuming that Sobrietors work correctly, Galluccio's situation
bears a significant risk of contamination from the chemicals used
to "clean" the device after it was received from another department
the day Galluccio got it. The mask on the device resembles a court
stenographer's mask, and if cleaning is done to sanitize and kill
germs,29 then the cleaning chemicals could linger on the
mask.

The Sobrietor manufacturer purchases its fuel cells from
Draeger,30 and these fuel cells respond to alcohols
other than ethanol.31 If the cleaning was done in this
manner,32 then one would expect the machine to respond
exactly as it did in the Galluccio
matter.33

Galluccio was not allowed to provide a contemporaneous blood
sample to rebut the readings of the Sobrietor. Within a few days,
Galluccio was able to submit biological samples at a forensic
center, which supervised the collection of samples of urine and
hair, so that these biological samples could be evaluated for ethyl
glucuronide, or EtG. EtG is produced in the liver when ethanol is
metabolized. Absence of EtG can confirm the absence of ethanol
several days after a suspected incorrect breath measurement is
reported.34

Courts routinely accept the results of tests for metabolites of
substances, rather than the substances themselves. Such is the
manner in which cocaine is routinely tested and reported, through a
urine screen that tests for the metabolite benzoylecgonine, rather
than for the cocaine itself.35

In the last year for which statistics were published by
probation, 184,775 urine samples were tested by Massachusetts
probation departments for the metabolite of cocaine.36
These tests produce immediate results, by means of chemical
reactions to strips of test paper that are exposed to the urine
sample. The probationer has an opportunity to request a more
specific and scientific analysis, using a GC/MS (gas
chromatograh/mass spec) test. It is with some irony that the court
in the Galluccio matter found the testing of biological
samples for the metabolite of a substance to be controversial, when
the court routinely accepts tests for the metabolite of cocaine,
using a detection mechanism that is not as accurate as what was
used in Galluccio's case.37

EtG testing is controversial because of false positives. A very
small amount of EtG can mean that an alcoholic drink was consumed
several days ago, or that Purell hand sanitizer was recently
used.38 A zero reading of EtG in a subject's urine or
blood can only mean that the individual did not have any ethanol in
their system within a three-day look-back. Assuming that the
analysis was performed in a competent lab, by competent scientists,
and that collection of samples was performed correctly, the proper
chain of custody was maintained, and that there is no evidence of
tampering with the hair, urine or blood - then a zero reading is
generally accepted as scientific proof of abstinence for a window
of 72 hours.

Galluccio had samples of hair and urine taken by a forensic lab
in Boston, and those samples were properly preserved and
transported to two labs,39 where the results for both
hair and urine resulted in a zero reading for EtG.40

The Massachusetts Appeals Court will soon decide whether a
positive result on the Sobrietor, which conflicts with observations
of the probation officer and zero results from laboratory-tested
urine and hair, is sufficient to support a finding of a violation
of probation. Attorneys who practice in the area of probation
surrenders should know that EtG tests permit the analysis of
biological samples well after the client has naturally eliminated
all traces of ethanol in their system.

For the client who drinks, but claims they were not drinking
that night, EtG testing may be of limited value. For the client who
claims they never drink or have not had an alcoholic beverage in
many days or weeks, EtG testing may be one of the only ways to
challenge an evidential breath test or a breath test on a machine
like the Sobrietor.

The Author

Thomas E. Workman Jr. teaches Scientific
Evidence at the University of Massachusetts Law School at
Dartmouth. He testifies on breath testing science and has published
on the topic of breath testing for ethanol in Suffolk Law School's
Journal of High Technology Law. He was retained by and consulted
with friends of Anthony D. Galluccio, but did not consult with
counsel at trial or on appeal, and he was not compensated for
writing this article.

Notes

1 Commonwealth v. Gallucio, No. 2010-P-0327 (Mass.
App. Ct. 2010). Galluccio is represented on appeal by Harvard Law
Professor Charles Ogletree. The government was recently granted a
40-day extension to file its reply brief, and Galluccio's motion
for a stay of sentence was denied. The current case status is
available at the Appeals Court Web site. Supreme Judicial Court and
Appeals Court of Massachusetts, Public Case Information,
www.ma-appellatecourts.org/search_number.php?dno=2010-P-0327&get=Search
(last visited June 9, 2010).

2 The author is indebted to attorney Justin McShane
of Harrisburg, Pa., for his assistance in providing articles from
scientific journals that described the science of EtG detection, a
method of detecting ethanol use in a multiple-day window of
time.

3 The probation surrender hearing was before Judge
Nestor on Jan. 4, 2010. The hearing transcript is 254 pages, and
the defendant-appellant's brief is 48 pages.

5 The Office of Alcohol Testing maintains the list of
approved machines that can be used to test human breath. 501 MASS.
CODE REGS. 2.38 (2010) sets forth the requirements that machines
must meet to be approved, which includes the presence of a machine
on the National Highway Safety Transportation Administration's
conforming products list, as published in the federal register.

6 Code of Massachusetts Regulations 501 CMR 2.38
requires that only machines that employ infrared technology be
utilized to test human breath for ethanol, which prohibits the use
of breath testing machines that utilize a fuel cell as their
measurement mechanism. The Sobrietor uses a fuel cell to measure
alcohol.

7 501 MASS. CODE REGS. 2.57 (2010) requires the
reporting of the lower of two samples which, after truncation to
two digits, agree with one another by .02. Thus a .037 and a .010
would be said to be in compliance, and a .01 would be reported.

10 Sobrietor User Manual, page 34 (provided as Page
44 of the Appellant's Exhibits, filed with his brief), states that
the Sobrietor "can detect down to .010 percent; however, following
up on indications of less than .025 is generally discouraged unless
the officer can perform an on-site test using a Personal Breath
Test within 15 to 30 minutes" and at page 16 "The lowest level that
Sobrietor can detect and report is .010, but the default setting is
.025."

11 MGL Chapter 263: Section 5A. Driving while
intoxicated; right to medical examination; notice"Section 5A. A person held in custody at a police station or
other place of detention, charged with operating a motor vehicle
while under the influence of intoxicating liquor, shall have the
right, at his request and at his expense, to be examined
immediately by a physician selected by him. The police official in
charge of such station or place of detention, or his designee,
shall inform him of such right immediately upon being booked, and
shall afford him a reasonable opportunity to exercise it."

15 The probation officer who installed the Sobrietor
testified at the probation surrender, and testified that Galluccio
had asked for an independent blood test. Most probation surrender
hearings proceed without the testimony of a percipient witness (as
to the breath test) from the probation department.

17 Material presented by Dr Barry Logan at the May
2009 Borkenstein Institute in Indianapolis, Indiana. Taken from the
author's course material when he attended the course.

18Id. Apple Walnut Roll contained just
under 1 percent ethanol by weight and a Hostess Twinkie contained
.03 percent, or one-thirtieth as much ethanol by weight. Eating
either would violate a court-imposed condition that one "abstain
from alcohol."

19 The author has personally witnessed a breath test
over the .08 legal limit, after the subject ate several slices of
deluxe pizza, and drank no alcoholic beverages.

21 North American Fire Arts Association, Material
Safety Data Sheet, available atwww.nafaa.org/ethanol.pdf
(last visited June 9, 2010). Those who work around chemicals that
contain ethanol, such as hair dressers, are susceptible to
inhalation of fumes containing ethanol, and they will develop
levels of ethanol in their bodies as a result of their
employment.

23 MASS. GEN. LAWS ch. 90 § 24(1)(a)(1) (2010)
states: "Whoever … operates a motor vehicle with a percentage, by
weight, of alcohol in their blood of eight one-hundredths
or greater, or while under the influence of intoxicating liquor, or
of marijuana … shall be punished" (emphasis added).

26 Sorbitol, a sugar alcohol, is a main ingredient
according to the Physician's Desk Reference for non-prescription
drugs. See Drugs.com, Sensodyne Original Flavor Patient
Advice Including Side Effects, www.drugs.com/pdr/sensodyne-original-flavor.html
(last visited June 9, 2010).

28 Joe Dwinell, Anthony Galluccio's Alibi Just
Evaporates, BOSTON HERALD, Dec. 25, 2009, available
at
http://bostonherald.com/news/politics/view/20091225anthony_galluccios_alibi_just_evaporates/srvc
(last visited June 9, 2010). The Herald "experiment"
demonstrates that it is possible to place toothpaste in the mouth
of one individual, wait an unspecified period of minutes, and then
blow into a different machine that utilizes a fuel cell, and not
register any alcohol reading. To suggest that one can conclude that
Galluccio's toothpaste did not cause any reading is scientifically
irresponsible, in the author's opinion. In real scientific testing,
as in FDA drug approvals, we never let the proponent do their own
testing on a subject population of one person, that being the
proponent. Such an FDA approval process, which is important, would
be deemed irresponsible.

29 The Sobrietor Manual, entered into evidence as
Exhibit 4 at page 34: "The area of the handset that comes into
contact with the face can be cleaned with hospital foam
disinfectant, a solution of bleach and water, or alcohol
swabs." (emphasis added).

30 According to an affidavit entered into evidence as
Exhibit 8, authored by an officer of the company that manufactures
the Sobrietor.

31 According to training provided by Draeger, the
9510 and 7110 use the same fuel cell. The Draeger 7110, which by
affidavit introduced by the commonwealth in Galluccio's surrender
matter as Exhibit 8, uses the same fuel cell as the Sobrietor. The
Draeger 9510 manual, at page 14, contains charts that show the fuel
cell response to alcohols which are not ethanol.

32 Isopropanol is known to be a problem for machines
like the Sobrietor. See A.W. Jones & S. Rössner,
False-Positive Breath-Alcohol Test after a Ketogenic Diet,
31 INT'L J. OF OBESITY 559, 559-61 (2007). Dr. A.W. Jones
documented the experience of a dieting patient who was unable to
operate a motor vehicle equipped with an ignition interlock,
because of false positives associated with the diet-induced
production of isopropanol. Id. The driver was a subject
who had never drunk intoxicating liquor, the ignition interlock was
not installed because of any prior activity of that driver, and the
documented false-positive caused an ignition interlock to disable a
motor vehicle driven by him. Id. Both the Sobrietor and
the fuel cell used in ignition interlocks evaluate the breath in
the same way, and both would interpret isopropanol as "alcohol."
Id.

33 If isopropyl alcohol was used to sanitize the
mask, and if Galluccio got a unit that normally would have sat on
the shelf for a time, he would have received a unit that still had
isopropyl alcohol in the mask. That alcohol could have accounted
for the low readings which rapidly declined, and then disappeared.
Because of the special processing Galluccio received, other
probationers are not likely to experience this problem.

34 EtG has a half-life of two to three hours, which
means that it can be found in the hair and urine for a period of
several days after the ethanol was metabolized. See John
P. Allen, Pekka Sillanaukee & Nuria Strid et al.,
Biomarkers of Heavy Drinking, in ASSESSING
ALCOHOL PROBLEMS: A GUIDE FOR CLINICIANS AND RESEARCHERS, 41 &
Table 2 (John P. Allen & Veronic B. Wilson eds., 2003),
available at
http://pubs.niaaa.nih.gov/publications/assesing%20Alcohol/allen.pdf.
(last visited June 9, 2010).

35 Massachusetts probation does not test for cocaine,
but rather for the metabolite of cocaine. See Sam
Bellistri, Phyllis Bucio-Nutaro & Jonathan Randall,
Massachusetts Community Corrections Drug Testing Protocol, 21,
(2001) available atwww.mass.gov/courts/admin/occ/drugtest.pdf,
slide 21 (last visited June 9, 2010).

37 Galluccio's hair and urine were tested with the
more scientific GC/MS method, which is generally considered to be
the gold standard for measuring metabolites for cocaine and ethanol
in biological samples.

39 While Galluccio's urine was shipped Fed Ex with an
ice pack, EtG is stable in the urine at room temperature. Friedrich
Wurst, Christoph Kempter & Stephan Siedl et al., Ethyl
Glucuronide - A Marker of Alcohol Consumption and a Relapse Marker
with Clinical and Forensic Implications, 34 ALCOHOL &
ALCOHOLISM 71, 75 (1999) available atalcalc.oxfordjournals.org/cgi/reprint/34/1/71.pdf."Furthermore we have investigated the stability of EtG in
urine by measuring and remeasuring the ethanol metabolite [EtG] in
a sample at room temperature every hour for 140 h. As shown in Fig.
2, the results fall within a very narrow range. This stability will
be particularly useful for storage and transport if use of the EtG
test becomes widespread."Id. at 75.